2003-9

Supreme Court Creates Test for Determining Whether Shareholder- Directors are Counted as "Employees" For ADA Jurisdiction

The Supreme Court created a six part test to distinguish between shareholder-directors who own and manage the enterprise and those who, despite their titles, act as employees. Only the latter are counted in whether the employer has the minimum fifteen employees necessary for ADA jurisdiction. Clackamas Gastroenterology Associates, P.C. v. Wells.

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Union Operating Exclusive Hiring Hall Must Justify Exclusion of An Employee

The Ninth Circuit ruled that a Union committed an unfair labor practice by refusing to reinstate an employee who was not a union member. The union lacked evidence of misconduct sufficient to overcome the presumption that he was discriminated against for not being a union member. Lucas v. National Labor Relations Board

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Termination Ruled Retaliatory Despite Decision-Makers Lack of Knowledge of Protected Activity.

The Ninth Circuit affirmed a jury verdict in favor of a medical resident who was terminated after questioning billing practices, despite the fact that the decision-makers regarding his termination had no knowledge of his protected activity. The supervisor with knowledge of the complaints was heavily involved in the proceeding and the employee's right to present evidence at the hearing was limited. Ostad v. Oregon Health Sciences University

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Employee's State Law Claim for Paid Time Off is Substantially Dependent on Collective Bargaining Agreement and Thus Pre-empted by Federal Law.

A California Court of Appeal ruled a union member's complaint under the California Family Medical Leave Act was preempted by federal labor law because her claim was substantially dependent on an interpretation of the collective bargaining agreement governing her employment. Fair Employment and Housing v. Verizon California Inc.

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